| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 17 |
| Hearing date | 28 Jan 2014 |
| Determination date | 03 February 2014 |
| Member | D Appleton |
| Representation | C McDonald ; R Webster |
| Parties | Bishop v Madagascar (No.1) 2013 Ltd |
| Summary | ARREARS OF WAGES – Applicant sought arrears of wages – Whether applicant entitled to redundancy compensation and bonus payments – Original employment agreement (“EA”) missing – New EA unsigned by applicant – Whether new EA varied applicant’s entitlement to redundancy compensation – Further EA contained no right to redundancy payment – Whether applicant saw final EA – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s failure to pay redundancy compensation – PENALTY – Applicant sought penalty for respondent’s failure to retain copy of applicant’s EA, failure to provide new EA when respondent realised did not have copy of old EA, and breach of EA |
| Abstract | AUTHORITY FOUND –;ARREARS OF WAGES: Applicant truthful in recollection of terms of original EA and signed original EA as part of formal process. Applicant had right to redundancy compensation when employment with respondent commenced. No evidence consideration provided for variation of applicant’s entitlement to redundancy compensation in subsequent EA but applicant’s claim based on subsequent EA. Applicant entitled to payment of $62,996 redundancy compensation. Applicant appeared to be entitled to bonus payment of $32,082. Authority ordered parties to engage regarding correct quantum of bonus payments and quantum of other bonus payment owed to applicant. Leave reserved for applicant to apply to Authority for determination of quantum of bonus payments. Respondent to pay applicant arrears of wages, quantum to be determined. Interest payable.;UNJUSTIFIED DISADVANTAGE: Failure to pay redundancy compensation when due capable of causing applicant disadvantage in employment but action derived from disputed interpretation of EA and unable to constitute personal grievance. Even if applicant’s claim capable of amounting to personal grievance, respondent’s failure to make payment fair and reasonable in light of dispute over applicant’s entitlement under EA. No unjustified disadvantage.;PENALTY: No deliberate failure to retain applicant’s EA and EA lost prior to statutory duty on respondent to retain EA. No requirement for respondent to provide copy of EA to existing employee as opposed to new employee. Not appropriate to penalise respondent for failing to pay redundancy compensation when genuine dispute between parties about whether payment due. No penalty. |
| Result | Application granted (arrears of wages) ; Arrears of wages (quantum to be determined) ; Interest (5%) ; Applications dismissed (unjustified disadvantage)(penalty) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA;ERA s103(1)(b);ERA s103(3);ERA s103A;Holidays Act 2003;Judicature Act 1908 s87(3) |
| Number of Pages | 13 |
| PDF File Link: | 2014_NZERA_Christchurch_17.pdf [pdf 189 KB] |